Legal Earthquake: US Supreme Court to Rehear Boumediene and Al Odah

The US Supreme Court has reversed its previous denial of rehearing in Boumediene v. Bush (06-1195) and Al Odah v. U.S. (06-1196), two of the leading-edge Guantanamo detainee cases. Some details at SCOTUSblog.

The move required five votes, strongly suggesting that Justice Kennedy may have moved off the fence.

Previously, both he and Justice Stevens had voted against hearing the cases at all, meaning that only three Justices had voted in favor, an insufficient number for the cases to be heard.

But now there are five potential votes to save habeas corpus and uphold the rule of law against executive attempts to detain indefinitely, make up inadequate kangaroo-court-like procedures (and even torture, although that's not directly at issue in these cases).

Al Odah v. United States, filed jointly by CCR, co-counsel Shearman & Sterling LLP, and a number of other law firms in 2004, consists of eleven habeas petitions, including many of the first ones filed after the Supreme Court's Rasul decision.

The Boumediene appeal, filed by Wilmer Cutler Pickering Hale and Dorr LLP in 2004 and heard with a case brought by Clifford Chance LLP, is on behalf of six Bosnian-Algerian humanitarian workers seized by the U.S. military in Sarajevo after Bosnian courts determined that a three-month investigation had unearthed no evidence to support their continued detention and ordered local authorities to release them.

Case Timeline

Both the Al Odah and Boumediene habeas corpus petitions were filed in July 2004, shortly after the historic Rasul v. Bush Supreme Court decision that affirmed the detainees' right to challenge their detention.

In January 2005, District Judge Joyce Hens Green held in Al Odah that detainees possess “the fundamental right to due process of law under the Fifth Amendment” and that certain detainees are protected by the Geneva Conventions. U.S. District Judge Richard Leon reached the opposite conclusion in Boumediene, ruling that the detainees possess no substantive rights to vindicate through habeas corpus. The two cases were consolidated and appealed to the D.C. Circuit Court of Appeals.

On February 20, 2007, two years after the cases were first appealed, a divided panel of three judges of the D.C. Circuit Court of Appeals ruled 2-1 in the consolidated case that the Guantánamo detainees have no constitutional right to habeas corpus review of their detentions in federal court. Because the court also found the MCA eliminated any statutory right of access to the courts under habeas corpus, it dismissed their cases.

On March 5, 2007, CCR attorneys, along with co-counsel, petitioned the U.S. Supreme Court to review the Court of Appeals decision that dismissed Al Odah and Boumediene and to hear the cases on an expedited schedule. Attorneys submitted an accelerated briefing schedule to ensure that the cases will be heard before the Supreme Court goes on summer recess; otherwise, the question of whether Guantanamo detainees still have the right to challenge their detention through habeas corpus might go unanswered until 2008.

On April 2, 2007, the Supreme Court announced that it would not be hearing the cases of the Guantánamo detainees for the time being. The Court denied the Center for Constitutional Rights (CCR) and co-counsel's motion to hear the case with three justices dissenting and two issuing a statement that the detainees should exhaust the process set up by the Detainee Treatment Act (DTA).

Today's reversal overturns that April decision. What has changed since then? The main thing is that it has become increasingly obvious that the procedures being used in the Guantanamo trials are a farce. That comes mostly from the press — what we've seen from the DC Circuit is rather a refusal to address that issue. Which may be why the Supreme Court is finally reacting.

Or is the court just getting a little ahead of Mr. Dooley's predictions?

UPDATE: SCOUTS Blog has the following useful links:

We have posted all of the filings in these cases.

The original petition in Boumediene, filed March 5, is here, and Al Odah is here. Both were denied on April 2, with Justice Breyer authoring a dissent from denial here, and Justice Stevens and Kennedy writing here respecting the denial of cert.

The Boumediene petition for rehearing, filed April 27 and granted today, is here, and Al Odah is here. The Solicitor General's reply, filed June 19, is here.